The Defense of Marriage Act: A Measure for Children and Families

Testimony beforeSubcommittee on the ConstitutionCommittee on the JudiciaryUnited StatesHouse of Representatives

April 15, 2011

My name is Charles Donovan. I am Senior Research Fellow at The Heritage Foundation. The views I express in this testimony are my own and should not be construed as representing any official position of The Heritage Foundation.

Introduction

The federal Defense of Marriage Act (DOMA) was passed in 1996 by wide margins in both houses of Congress and signed into law by President Clinton. It was enacted in response to an unprecedented state court decision that portended the possibility that the federal government and every other state in the Union would face legal challenges to the definition of marriage as the union of a man and a woman.[1]

Today, a decade and a half later, legal challenges to the nature of marriage have multiplied, and DOMA itself has come under challenge, including adverse rulings in federal district court last year in Gill v. Office of Personnel Management and Massachusetts v. U.S. Department of Health and Human Services. The purposes identified by Congress in enacting DOMA have not, however, diminished in any way. In fact, the public policy objectives served by DOMA are, if anything, more urgent than ever. Without doubt, they are rationally related to the fundamental objective of securing mothers, fathers, and children in their relationships to one another and assuring their opportunity to flourish individually and socially. Marriage is an indispensable avenue for that assurance.

During consideration of DOMA in 1996, the House Judiciary Committee’s report to accompany the bill laid out four governmental interests that undergirded the legislation: (1) defending and nurturing the institution of traditional, heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources.[2] Each of these interests is related to the public stake in the time-honored and nearly universal character of marriage as an institution designed to bring men and women together and orient them toward their responsibilities in the begetting, bearing, and raising of the next generation.

Four Governmental Interests Behind DOMA

Each of these interests offers a sturdy and even compelling basis for DOMA, and each persists today.

Speaking of the first interest, in his testimony to the House Judiciary Committee 15 years ago, Professor Hadley Arkes noted:

We are, each of us, born a man or a woman. The committee needs no testimony from an expert witness to decode this point: Our engendered existence, as men and women, offers the most unmistakable, natural signs of the meaning and purpose of sexuality. And that is the function and purpose of begetting. At its core, it is hard to detach marriage from what may be called the “natural teleology of the body”: namely, the inescapable fact that only two people, not three, only a man and a woman, can beget a child.

These truths are as true today as they were then.

Professor Arkes might have added that we are, each of us, born of one man and one woman as well. Despite the developments in biotechnology that permit extra-uterine conception and surrogate gestation, every baby born today continues to represent the biological son or daughter of a man and a woman. Moreover, new studies have demonstrated that children born via the use of assisted reproduction technologies, who may be conceived via sperm or egg donation, or both, experience in large numbers a desire for knowledge about and even connection with the biological mother and/or father they have never met. This might be referred to as a “natural teleology of the family,” an individual child’s recognition that, whatever his or her parental relationships may be recognized as under the law, there is a natural and permanent biological template in which he or she is likely to have continuing emotional, psychological, and medical interest.[3]

The second interest behind DOMA, that of defending traditional notions of morality, is likewise an enduring one, which legislative bodies, responding to the public mind and its access to continuously developing information, are entrusted by our representative form of government to evaluate and act upon. The propriety of this trust is foundational to our republican form of government; it presumes the fundamental competence of the people to make laws that serve the common good and that protect the rights of minorities without depriving any person of essential rights. Nearly all laws represent some form of moral statement or public virtue, whether the topic is speed limits, clean energy credits, truth-in-lending, or even certain concepts of due process and equal protection. Courts that are tempted to strike down legislation that is rooted, in whole or in part, in moral judgments will be very busy indeed.

In 1996, an unprecedented state court ruling was enough to prompt a congressional review of the implications of a radical change in the definition of marriage for federal and state policy. The swift and clear response by Congress to this sudden challenge underscores the strength of the public consensus about the wisdom of retaining the core, traditional definition of marriage.

The recent decisions of several state supreme courts—including those of Massachusetts, Vermont, Connecticut, and Iowa—to mandate the creation of same-sex civil unions or marriage are at variance with the conclusions of nearly every authority that has weighed in with respect to this issue. “Until quite recently,” as the defendant-appellants put it in their appeal brief in Perry v. Schwarzenegger, “the abiding link between marriage and society’s existential interests in responsible procreation and child-rearing was routinely recognized, without a hint of controversy, not only by the California Supreme Court [] but by every state appellate court to address the purpose of marriage.” The brief also notes that this has been the consistent conclusion of federal appellate courts to date and of the U.S. Supreme Court itself as early as 1972 in Baker v. Nelson.

Significantly as well, the decisions made by popular vote regarding the future of marriage in the United States have had a uniform outcome. Voters in 31 states have cast 63,394,399 ballots on the question of marriage redefinition since the people of Hawaii and Alaska went to the polls in 1998. More than 40,000,000 of those ballots—63.1 percent—have been cast to preserve marriage as it has always been understood by Congress and the vast majority of state legislatures.[4] No state’s people have voted to the contrary. Finally, just last November, the voters of Iowa registered their resounding disapproval of the Iowa Supreme Court’s invention of a constitutional right to same-sex marriage by removing all three of the judges on the statewide ballot who had signed the court’s ruling.

The third interest represented by DOMA is rooted in our constitutional order. Section 2 of DOMA expresses the determination of Congress that no state shall be required to give effect to the decision of another state with respect to its law recognizing or refusing to recognize the marriage of persons of the same sex. The provision is a two-way street, guaranteeing states the liberty under their own laws, consonant with the beliefs of their own residents, to choose to recognize or not to recognize the decisions of any other state with respect to the definition of marriage in their own state. As this committee noted at the time of adoption of DOMA, this provision is a narrow one:

It [does] not forestall or in any way affect developments in Hawaii, or, for that matter, in any other State. Indeed, nothing in this (or any other) section of the Act would either prevent a State on its own from recognizing same-sex “marriages,” or from choosing to give binding legal effect to same-sex “marriage” licenses issued by another State.

At the same time that states are free to choose their marriage policies, DOMA exercises the prerogative of the federal government to define marriage for purposes of federal law.

Finally, the fourth interest expressed by DOMA, the ability of Congress to exercise control over scarce government resources, is dramatically greater today than it was in 1996. In the same year that DOMA was adopted, the Congress adopted reforms of the federal welfare policy that were designed to encourage work, support marriage and family formation, and control exploding costs to taxpayers. This action was taken primarily as a result of congressional recognition of the deleterious effect three decades of burgeoning welfare spending had had not merely on the public purse, but on patterns of dependency among program recipients. With the assistance of this legislation, the public good of marriage was embraced, and an already shrinking federal deficit in 1996 was moved into balance in 1997 and surplus in 1998 and beyond.

Today, federal deficits and debt are widely recognized to be spiraling into uncharted territory. This is no time to sacrifice the power of the Congress to define and control federal expenditures related to employee benefits, tax preferences, and other purposes to the vagaries of states choosing to redefine marriage and family. The case for doing so is even less compelling when it is clear that Congress, acting on its own, is free to make decisions to define benefits and preferences that not only accord with budgetary imperatives, but also proceed without compromising the signal, which DOMA represents, that the preservation of the family unit is a matter of urgent national importance.

Moreover, and more profoundly, the promotion and preservation of intact (married mother-and-father) families bear financial implications for governments across a broad range of social indicators that carry enormous social costs. Children raised in intact families by their own mothers and fathers commit fewer crimes as juveniles, have fewer pregnancies and children out of wedlock, suffer less physical abuse, experience more educational success, resort less often to divorce, suffer less from substance abuse, and even shoplift less frequently.[5] Defending the core element of marriage, its one-man and one-woman character, is an indispensable part of defending the institution more generally and the public benefits it provides.

All of the governmental interests embodied in the Defense of Marriage Act ultimately serve one overarching purpose: to create and foster conditions of public policy that reinforce the binding of men and women to one another and to the children they co-create. Study after study of the impact of marriage and the sustained presence of mothers and fathers in the home, striving together and nurturing their children, demonstrate the advantages of a married mother and father over every other family form that has been exhaustively studied to date.

A June 2002 report from Child Trends titled “Marriage from a Child’s Perspective” (Moore, Jekielek, and Emig) notes that the differences in child development outcomes are not simply related to differences between single-parent and two-parent households, but to “the presence of two biological parents.”[6] These advantages are statistically significant, consistent, and often dramatic. Studies to examine whether parenting by same-sex couples would represent a unique exception to this finding remain controversial and incomplete. The prudence of Congress in protecting and promoting the maximum attachment of children to their natural mother and father should be respected.

Even if some studies were to show effects less than might be expected from previous research on the breakdown of mother–father families, the claim of children to the care and attention of the persons of the two sexes that were necessary to create them can and should be taken into consideration in public policy.

Indeed, that concern is, if anything, more urgent today than ever. Today’s cultural shifts in cohabitation and out-of-wedlock childbearing, as well as persistent economic difficulties affecting Middle America, have combined to produce record numbers of children beginning life and being raised in single-parent households. In 2009, more than 1.7 million children—41 percent of all U.S. children who entered the world that year—were born to single mothers. The poverty rate among these children, if it holds with current patterns, will be nearly five times what it is for children with both a mother and a father in the home. Overall, nearly 70 percent of poor families with children are headed by single parents.[7]

The effects of family structure are not merely economic, and they are not therefore simply remedied by economic measures. The effects on children of being raised outside a biological family arrangement include greater risk of lower educational attainment, elevated rates of delinquency, more unwed pregnancy and childbearing, and other consequences. These aggregate findings do not spell the future of every single child raised in less than ideal family structures, but for those for which they do, they are very real indeed and the proper object of government concern.

For all of these reasons and more, concerned citizens and legislators have reacted with justifiable caution and even resistance to proposals to change the definition of marriage. They have reasonably concluded that these proposals have more to do with private preferences than they do with the public interest in community and intergenerational goods. The Defense of Marriage Act of 1996 is best seen, therefore, not as a measure singularly focused on a cultural debate occasioned by a state court decision, but as a response embedded within a growing awareness of the compelling public policy rationale to promote traditional marriage and encourage strong and stable homes where children can thrive and reach their full potential.

[6] Kristin Anderson Moore, Ph.D., Susan M. Jekielek, M.A., and Carol Emig, M.P.P., “Marriage from a Child’s Perspective: How Does Family Structure Affect Children, and What Can We Do About It?” Child Trends, June 2002, at http://www.childtrends.org/files/marriagerb602.pdf(April 15, 2011).

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